Spate of people/ad clashes

It’s been a vintage month for personalities and advertising, with characters as diverse as Walter Cronkite, Catherine Zeta-Jones, Major Charles Ingram and Prince Charles featuring, as well as 1970s athletes.

When: September and October 2003 In a big month for personalities in advertising we report on five clashes.

What happened:

Odd one out

Of the five, the case involving veteran US broadcaster Walter Cronkite is the odd one out. Walter, now 86, was not complaining about the use of his image in advertising without his consent. The Guardian reported he was being sued for pulling out of advertising which he had previously agreed to do.

For $50,000 Florida-based WJMK Productions hired Cronkite, known as "the most trusted man in America," for a two day shoot in which he would present "newsbreaks" on health problems and the drugs available to treat them.

Cronkite pulled out of the shoot, when it emerged that drug companies had paid around $15,000 to be featured.

Due to a misunderstanding, Cronkite said he had not been aware that there was any product endorsement involved, whilst WJMK denied that the films were commercial ventures at all, insisting that they were educational. They are suing Cronkite for $75,000 damages for his breach of contract for failing to turn up for the shoot.

Catherine Zeta-Jones sues Caudalie

In another US development, reported by Global Advertising Lawyers' Alliance colleagues Hall Dickle Kent Goldsteine Wood of New York in their "Adlaw by Request" on-line advertising and marketing law report service, actress Catherine Zeta-Jones has filed a lawsuit against French cosmetics company Caudalie.

Catherine seeks $15m damages for spreading a story that she had been spotted buying the complete Caudalie range of skincare products and had also used the company's anti-ageing spa in Las Vegas.

As if complaints that as many as one in four callers to 118118 received the wrong number were not multiple enough, the new directory enquiry service is now beset by "breach of image rights" claims over the two-long haired, Zapata moustachioed runners that feature so prominently and memorably in its advertising.

118 118 itself, and its agency WCRS, claim that the characters are actually loosely based on the late US athlete Steve Prefontaine and a mix of other 70s athletes.

There is no denying, however, that there is a quite startling similarity between one particular athlete of that era, Brit David Bedford, and the two ad icons. Just look at the straggly long hair, the moustache, the low cut singlet, the sweaty chest hair, the two horizontal red stripes round the chest, the number panel at the front of the chest, the red socks and the silky cut-away shorts.

Bedford, who broke the 10,000 metres world record in 1973 and is now race director of the London Marathon, is reportedly seeking up to £200,000 in compensation for breach of his image rights, although it is not clear whether, in the face of the advertiser's denials, proceedings have now been issued.

In a further twist, it was reported a week later that twin 70s athletes Graham and Grenville Tuck also claim the advertising characters are based on them.

Eurostar royal lookalikes do not amuse

The UK's Royal Household has been upset by a Eurostar advertising campaign that has broken in Brussels, devised by TBWA. In one ad a Queen Elizabeth II look-alike has been superimposed on a Marilyn Munroe figure. In another, presumably to demonstrate the faster schedule for trains between Brussels and London, a Prince Charles lookalike's head has been superimposed on a running athlete clad in Lycra emblazoned with the Union Jack.

The campaign has apparently been a great success, with Eurostar reporting a 10% rise in sales in Belgium, but the UK's Royal Family is suffering a sense of humour failure, saying it "never endorses commercial products" and complaining that people have been deliberately deceived into thinking that senior members of the Royal Family are backing Eurostar services.

And not to be left out, Easyjet

Unsurprisingly given their "previous" with personalities such as David Beckham, Easyjet were determined not to be left out of this recent spate of personality/ad claims. The Advertising Standards Authority ("ASA") adjudicated on a complaint over an Easyjet advertisement in the Mail on Sunday. Published shortly after Major Charles Ingram was found guilty of fraud following his exploits on "Who Wants to be a Millionaire?", the ad featured a photograph of Major and Mrs Ingram under the heading "Need a cheap getaway?" Below the photograph it stated "(no Major fraud required!)".

Major and Mrs Ingram had not given their consent and complained to the ASA on grounds that the ad constituted an invasion of their privacy and was offensive and distressing to them.

The ASA threw out both complaints.

On the first, the ASA noted that the CAP code, although it "urged" advertisers to obtain written permission before referring to individuals in advertisements, did not actually require them to obtain it. Although the Ingrams maintained their innocence, the ASA concluded that the ad portrayed them in a way that was quite consistent with the verdicts in their recent court case and not in an unfairly adverse way. For exactly the same reasons, the second complaint was also not upheld.

Why this matters:

Cronkite's "due diligence" message

In reports on cases involving contracts for the appearance of personalities in advertising, we have often urged advertisers to carry out due diligence on potential endorsing stars before signing them up, as well as including suitable "disgrace" provisions in the contract itself. One message of this US case is the corresponding need on the part of personalities to investigate fully what exactly they are letting themselves in for before signing on the dotted line.

"Image rights" conundrum

Although "image rights," or "rights of publicity" in US legal parlance, are far better developed stateside than they are here in the UK, would Zeta-Jones have a strong claim if this happened in the UK? If for the sake of argument it were true that she had bought the full range of Caudalie products and Caudalie simply stated this, then subject to one aspect, it is dubious whether she would have any claim given that she does not appear to have registered her name as a UK trade mark in respect of cosmetics.

The "one aspect" is our law of breach of confidence and related data protection issues. Depending on the circumstances in which Caudalie came by their knowledge of Ms Zeta-Jones' purchase, this could qualify as confidential information about a personal transaction and/or use of "personal data" in a way that was outwith the fair processing principles of the Data Protection Act 1998. We already know from the Hello!/OK! wedding pictures case that Mrs Douglas is well aware of these laws, so this might well be a significant sticking point!

In the Ingram case, the surprising aspect is that he and the missus should have bothered to complain at all, whilst it will be interesting to see whether David Bedford puts his money where his mouth is and actually sues beleagured 118118. With "passing off" Bedford's only available cause of action under UK law, we suspect he is going to have a fight on his hands.

To get to first base, the claimant in a passing off case must be able to establish that he has built up a goodwill/commercial reputation in a business operating under the distinctive features which the defendant has allegedly stolen. Thirty years on from his heyday as a record-breaking athlete with no discernible public profile since that time, this is clearly going to be a big ask.

Brussels challenge for Royal Family

In the UK there is no known case in which the Royal Family has issued proceedings for passing off over advertising, and it is some years since the CAP Code specifically stated that members of the Royal Family should not be used in advertising without their consent. Despite this, one way or the other it simply is not done in the UK that one uses Royal images in advertising.

In Belgium, however, our Royals may have no such inhibitions and if, as we suspect, image rights are better developed there, we may yet see sterner action being taken if Eurostar stick to their guns.

Another aspect of this story is that although it has probably not happened in the Eurostar case, UK advertisers should be wary of taking risks on the basis that "image rights" are not developed in the UK.

Take UK national newspapers featuring ad references to famous personalities. There may be reasons why, under our undeveloped personality rights, the ad is a fair commercial risk here in the UK. If the newspaper in question has a circulation, even a very small one, in other countries such as the US where there are better-developed personality rights, the risk may turn out to be not in the least commercial and pretty unfair.